By Lee Sherman
A Will should specify the final wishes of the deceased. It spells out, in excruciating and legally binding detail, exactly who gets what. But if for some reason, you’ve been expecting an inheritance or you’re disappointed with your share of the estate, you may decide to contest it.
If you decide to go down this road however, you should tread carefully. It may end up costing you far more than you anticipate. And most such challenges are unsuccessful.
First, you’ll need to separate any feelings of wrongdoing from actual legal recourse. You can’t merely contest a Will because you believe it to be unfair. Or because you assumed or were told you would be included. Generally speaking, you must prove mental incapacity, fraud, coercion, or that the Will violates certain legal requirements.
While it may be possible to settle out of court with the deceased’s legal representatives, it will most likely involve a trip to probate court and the help of an expensive probate lawyer. You’ll have to show that the Will itself is illegal. Be prepared to sit for a deposition and submit evidence to support your claim.
The probate court will only hear claims from people with legal standing to contest the will. It’s a short list which includes:
- Beneficiaries named in the Will.
- Beneficiaries named in a previous version of the same Will (you may have been written out of the latest version or had your share of the estate reduced).
- Beneficiaries not named in the Will who would have been eligible to inherit property if a will didn’t exist (Ie: a spouse, child or next-of-kin).
Reasons for Contesting a Will
You believe that the person who wrote the Will didn’t meet the legal requirements:
- They were mentally incapacitated at the time of writing.
- They were under “undue influence” (meaning that they may have been coerced by an unscrupulous relative or signed the Will under duress).
- The Will was old, fraudulent, or incomplete.
- They broke certain other laws.
A will may be determined to be legally valid if it meets the following requirements:
- It is signed by two witnesses.
- Any changes are also signed by two witnesses.
- The person who wrote the Will was within their legal rights to distribute any property named in the Will.
- The person who wrote the Will was not coerced into signing the Will.
You’ll only have a short window to contest a Will. In most states, you’ll be subject to the statute of limitations (which begins as soon as you receive notice of probate). Besides the fact that most such claims are notoriously difficult to prove, contesting a Will could leave you in worse financial shape than before. This is especially true if your complaint is that you didn’t receive your fair share of the estate. You could be disinherited and receive nothing.
Lee Sherman is a contributing writer to MyPerfectFinancialAdvisor, the premier matchmaker between investors and advisors. Lee is an experienced journalist and editor with over 30 years of expertise with a significant history of writing in the personal finance and technology arenas.